VANCOUVER – The harms that polygamy inflicts on women and children outweigh any claims to religious freedom, a B.C. judge said Wednesday in a landmark case that is almost certainly destined for the Supreme Court of Canada.
Chief Justice Robert Bauman of the B.C. Supreme Court concluded Canada’s 121-year-old polygamy law is valid as long as it isn’t used to prosecute child brides, and he suggests it should be interpreted that way.
“This case is essentially about harm. … This includes harm to women, to children, to society and to the institution of monogamous marriage,” wrote Bauman.
“Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.”
Bauman accepted evidence that polygamy inherently leads to a long list of harms, including physical and sexual abuse, child brides, the subjugation of women, and the expulsion of young men who have no women left to marry.
Bauman’s decision isn’t binding, although the case is expected to end up at the Supreme Court of Canada, which would have the final say on Canada’s polygamy law.
More than two decades of controversy surrounding the isolated religious commune of Bountiful, B.C., where residents follow a fundamentalist form of Mormonism that believes polygamy is required to attain the highest level of heaven.
The failed prosecution of two leaders from the community prompted the provincial government to ask Bauman two questions.
First, does the Criminal Code section banning polygamy violate the Charter of Rights and Freedoms? And if not, does the criminal definition of polygamy require evidence of abuse?
To the first question, Bauman said the law does indeed violate the freedom-of-religion rights of Bountiful residents, but he said the harms to women and children outweigh those rights.
“There can be no alternative to the outright prohibition,” wrote Bauman.
“There is no such thing as so-called ‘good polygamy.”‘
For polygamous marriages involving men and women 18 and over, Bauman said the law covers all such marriages and prosecutors don’t need to show evidence of abuse or coercion.
Winston Blackmore and James Oler, who lead separate, divided factions within Bountiful, were each charged in 2009 with one count of practising polygamy.
Those charges were later thrown out after a judge concluded the way the province chose its prosecutors violated the men’s rights.
Rather than appeal, the provincial government launched the current constitutional reference case.
The subsequent trial heard from a range of academic experts, former polygamists and current plural wives, focusing almost exclusively on Bountiful and the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or the FLDS, to which the community belongs.
The hearings focused an unprecedented public spotlight on the community of about 1,000 residents, who have been investigated numerous times during the past two decades but have so far avoided prosecution.
Blackmore said last week he hoped the case would conclude the law is unconstitutional and that he and his community will be left alone.
“It would be nice to not have discrimination and persecution from the government,” he said in an email to The Canadian Press.
“It would certainly be nice to have the same charter protection as everyone else.”
The FLDS holds polygamy as a tenet of the faith, although the mainstream Mormon church renounced polygamy more than a century ago.
The case heard two months of testimony offering wildly diverging opinions about life in such polygamous communities and the effect of polygamy itself.
The federal and provincial governments, as well as several intervener groups who want the current law upheld, argued polygamy is always harmful.
They said allowing men to marry multiple women will inevitably harm society, as well as the women and children involved in the marriages.
Indeed, the court heard allegations of all of those harms happening in Bountiful. Most notably, the court heard evidence of cross-border marriages involving girls as young as 12-years-old.
Both Blackmore and Oler were accused of helping transport teen girls to the United States to be married and of marrying teen girls themselves.
Those allegations prompted the RCMP to launch a renewed criminal investigation, which is still ongoing.
Lawyers for Bountiful residents and advocates of civil liberties argued the law violates the charter’s religious guarantees and rejected the argument that polygamy is inherently bad.
The law is an outdated relic akin to Canada’s long-abandoned ban on homosexuality, they argued, and any alleged crimes can be punished under other laws, such as those prohibiting sexual abuse and human trafficking .